employment options for foreign nationals with non-immigrant visas · 2015-10-21 · continued –...
TRANSCRIPT
Employment Options for
Foreign Nationals with
Non-Immigrant Visas
April, 2009
Visas most commonly Used/Seen at UTHSC-H
which allow employment with Restrictions.
Type of
Visa
Description Employment
Restrictions
H-1B Temporary Worker in
Specialty Occupation
•Employment permitted by USCIS
only with sponsoring institution, only
for approved time
•Specific to employment conditions
•Concurrent employment permissible
only with USCIS approval
•Prohibited from receiving other
payments
O-1 Person of Extraordinary
Ability
•Employment “incident to status”
•Only with sponsoring employer
•Concurrent employment permissible
•No dual intent (return home)
… Continued – Visas most commonly Used/Seen at UTHSC-H
which allow employment with Restrictions
Type of
Visa
Description Employment
Restrictions
J-1 Exchange Visitor:
•Professor / Researcher
•Employment ‘”incidental to status” only
by designated program sponsor and only
for approved time as approved by DOS
•Other compensation allowed only with
written authorization
Exchange Visitor:
•Physician (Trainee)
•Employment “incidental to status” only for
purposes of medical training as
designated by ECFMG
Exchange Visitor:
•Student
•Part time (20 hrs) employment only on
campus while school is in session
•Full time employment while on school
breaks
•Academic Training employment for up to
18 months (36 months postdoc training)
… Continued – Visas most commonly Used/Seen at UTHSC-H
which allow employment with Restrictions
Type of
Visa Description Employment Restrictions
F-1 Student While maintaining F-1 status:
• On-Campus employment allowed: part time (20hrs)
while school is in session and full time during school
breaks when eligible to enroll – No EAD required
• Due to unforeseen “economic hardship” may apply
for part time EAD if approved by Designated School
Official (DSO)
• Practical Training employment related to field of
study:
• CPT (Curricular Practical Training) DSO
authorization, no EAD required, reported to SEVIS.
• OPT (Optional Practical Training) DSO
authorization, EAD from USCIS required, reported
to SEVIS. Limited to 12 months
• Pre completion of studies
• Post completion of studies: – extendible additional 17
months to work for E-verify employer
… Continued – Visas most commonly Used/Seen at UTHSC-H
which allow employment with Restrictions
Type of
Visa
Description Employment Restrictions
TN Professionals under
NAFTA – for citizens of
Canada and Mexico
•Employment permitted by USCIS only with
sponsoring employer, only for approved
time
•Concurrent employment permissible only
with USCIS approval
•Prohibited from receiving other payments
B-1 Visitor for Business •Employment not permitted
•Allowed to accept reimbursement for
expenses
•Higher Ed: acceptable honorarium
payments for academic activities (lasting
no longer than 9 days, received from not
more than 5 institutions in the prior 6
months period.
… Continued – Visas most commonly Used/Seen at UTHSC-H
which allow employment with Restrictions
Type of
Visa
Description Employment Restrictions
B-2 Visitor for Tourism •Employment not permitted
•Generally not allowed to receive
reimbursement for expenses
•Higher Ed: acceptable honorarium
payments for academic activities (lasting
no longer than 9 days, received from not
more than 5 institutions in the prior 6
months period.
WB and
WT
Visa Waiver for
Business and Tourism
•Same as B-1 and B-2 for foreign nationals
from countries exempt from visa
requirement to enter the U.S.
•May not extend or change visa status
within the U.S.
… Continued – Visas most commonly Used/Seen at UTHSC-H
which allow employment with Restrictions
Type of
Visa
Description Employment Restrictions
Visas for Dependents: spouse and
unmarried children under 21 years of age
H-4 Dependent of H-1 •Not permitted to work in the United States
O-3 Dependent of O-1 •Not permitted to work in the United States
J-2 Dependent of J-1 •Eligible to apply for work authorization through
USCIS: EAD (Employment Authorization Document)
•With EAD may work for any employer
F-2 Dependent of F-1 •Not permitted to work in the United States
TD Dependent of TN •Not permitted to work in the United States
The H-1B
Visa Status
WHAT IS AN H-1B VISA?
An H-1B visa is a visa that is reserved for individuals employed in “specialty occupations.”
A "specialty occupation" for H-1B purposes is defined as an occupation that requires:
theoretical and practical application of a body of
“highly specialized” knowledge
and
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States
H-1B SPECIFICS…
• Employer/ Employment Specific
• Employee must maintain employment in order to
maintain valid visa status
• Six Year Maximum Limitation
• H-1B transfers allowed via H-1B Portable Rule
• Concurrent employment allowed
• Occasional speeches and lectures allowed,
however employee cannot accept honoraria as
fee for service rendered (travel expenses may be
reimbursed)
H-1B Specifics- cont’d
• May be processed for maximum duration of 3 year
increments at a time, up to 6 year max
• Changes in job title, % time, additional job duties
require employer to first file modified petition with
USCIS prior to employee assuming new change(s)
• In the event of employee is released before the
end date of approved petition, employer is
obligated to pay cost of return transportation to
home country
• No grace period allowed
PARTIES INVOLVED IN THE H-1B
PROCESS
1. Department of Labor (DOL):
SWA – TWC
Employment & Training Administration (ETA) – LCA
2. Department of Homeland Security
Accepts and processes H-1B petition- Form I-129 Petition for Nonimmigrant Worker-with approved LCA attached
Determines if occupation qualifies as a specialty occupation and if the international meets minimum requirements for H-1B classification
Confers H-1B status through a change of status or consular processing
…PARTIES INVOLVED IN THE H-1B PROCESS
3. US Employer (UTHSC-H) Submits completed LCA to DOL
Submits Form I-129 with attached certified LCA to USCIS
Employs H-1B employee pursuant to terms of LCA & I-129
Responsible for cost to cover return transportation to home country in the event that employee is released from employment prior to end date of approved petition
4. International Employee
Must meet minimum requirements of occupation in terms of education (Bachelor's minimum), credentials and experience
Must not be subject to any bar to obtaining H-1B status (i.e- 212(e))
Must intend to work for H-1B sponsor
Must maintain status by complying with terms of employment
Types of H-1Bs that we sponsor at UTHSC-H
Non-Clinical • Researchers
• Faculty
• Classified/ Administrative Positions
Clinical Any and all clinicians with exception of those individuals
seeking Graduate Medical Training
Exceptional Ability Will typically be a clinician who lacks USMLE, but
possesses a degree of expertise significantly above the average clinician
OIA H-1B In-House Processing
Upon Visa Request to OIA: Step 1: Submit Request for Prevailing Wage determination to State
Workforce Agency
Step 2: Once PW determination is back from SWA, OIA must determine eligibility to proceed with H-1B sponsorship. Salary offered to the international must be 100% +of PW determined by SWA.
Step 3: Submit Labor Condition Application (Form ETA 9035E) to Department of Labor
Step 4: When LCA is back certified, have Notice posted in conspicuous area for 10 business days.
Step 5: Complete Form I-129 and package H-1B petition with supporting documentation
Step 6: Mail Completed H-1B Petition with all required Fees to USCIS
Step 7: Create and File Public Record File
Step 8: Once I-797 Approval Notice is secured, OIA packages and sends pre-arrival packet to visitor abroad.
Alien worker applies for visa stamp
The J-1
Visa Status
17
The Purpose of the J-1 Program
“To increase mutual
understanding between the people of the U.S. and the
people of other countries by means of educational and
cultural exchanges.”
18
Exchange Visitor Program
Activity Categories
• Alien Physicians*
• College & University
Students (including
Student Interns)*
• International Visitors
• Research Scholars*
• Short-term Scholars*
• Summer Work Travel
Participants
• Trainees and Trainee Interns*
• Au Pairs
• Government Visitors
• Professors*
• Secondary School Students
• Specialists*
• Teachers
* COMMON IN HIGHER EDUCATION
19
Eligibility Requirements for
all Exchange Visitors
Intent to pursue appropriate activity
Intent to return to home country (if
applicable)
Sufficient funding
Appropriate background for program
activity
Adequate English
J-1 Visa - Alien Physician
category
• Temporary, non-immigrant visa
• Full time educational / training visa
• Two-year home residency requirement {INA &
212(e)}
• Seven year maximum for progressive training
• The J-1 Alien Physician category can ONLY be
sponsored by the J Exchange Visitor program of
the Educational Commission for Foreign Medical
Graduates (ECFMG).
• Foreign national
• International Medical Graduate
• Have passed the United States Medical Licensing Examination (USMLE) Step 1 and Step 2 Clinical Knowledge (CK).
• Hold a valid ECFMG Certificate without expired examination dates
• Have a contract for a position in an ACGME-accredited program or directly associated fellowship that is affiliated with a medical school
• Provide a statement of need from the Ministry of Health of the country of nationality or most recent legal permanent residence.
• Pays appropriate ECFMG administrative fee. Currently $200 which may be paid on the ECFMG website via OASIS.
General Qualifications for J-1 Alien
Physician Sponsorship
Visa Options for Alien Physicians in Graduate
Medical Education (GME) at UTHSC-H
Accepted Options
J-1 Alien Physician sponsored by ECFMG
F-1 Student with Optional Practical Training – entry level
EAD holders – pending immigrants
U.S. Permanent Residents
Not-Accepted Options
J-2 Dependents on EAD - continuity
of J-2 status and employment authorization depends on circumstances beyond control of trainee
H-1B Specialty Worker – difficulties meeting prevailing wage (2005)
O-1 Extraordinary Ability – residency and Fellowship positions are training level positions, not senior level
TN – (Treaty NAFTA) option for Canadians and Mexicans who will engage in teaching and/or research only.
The F-1 Visa
Status
Summary of F-1 Employment Options
While maintaining F-1 status:
• On-Campus employment allowed: part time (20hrs) while school is in
session and full time during school breaks when eligible to enroll – No
EAD required
• Due to unforeseen “economic hardship” may apply for part time EAD if
approved by Designated School Official (DSO)
• Practical Training employment related to field of study:
• CPT (Curricular Practical Training) DSO authorization, no EAD
required, reported to SEVIS.
• OPT (Optional Practical Training) DSO authorization, EAD from USCIS
required, reported to SEVIS. Limited to 12 months
• Pre completion of studies
• Post completion of studies: – extendible additional 17 months to
work for E-verify employer
Questions?
Maria C. Arevalo-Sanchez
Director